Diebold, Inc.

National Labor Relations Board - Board DecisionsMay 22, 1974

210 N.L.R.B. 816 (N.L.R.B. 1974)

816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Diebold, Incorporated and Local Union No. 3, Interna- tional Brotherhood of Electrical Workers, AFL- CIO. Case 2-CA-13001 May 22, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On January 22, 1974, Administrative Law Judge Frank H. Itkin issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, the Charging Party filed exceptions, and Respondent filed cross- exceptions and a brief in support thereof and in answer to the General Counsel's and Charging Party's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Diebold, Incorporat- ed, New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order. I All the parties have excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (CA 3, 1951) We have carefully examined the record and find no basis for reversing his findings DECISION Labor Relations Act by interfering with , restraining, and coercing employees in the exercise of their protected union activities and by discharging employee John Worsham because he had engaged in protected union activities. Respondent denies the alleged acts of interference, restraint, and coercion . Respondent admits discharging employee Worsham on June 4 , 1973, and thereafter refusing to reinstate Worsham . Respondent asserts that Worsham was terminated solely for misappropriation of Company resources. Upon the entire record , including my observation of the witnesses , and after due consideration of the brief filed by counsel for Respondent , I make the following: FINDINGS OF FACT 1. INTRODUCTION The complaint alleges, the answer admits and I find and conclude that Respondent Company maintains its princi- pal office and place of business in Canton, Ohio, and also maintains branch offices throughout the United States. Respondent has facilities at 45 East 53rd Street in New York City where it is engaged in the manufacture, sale, installation and servicing of bank and office equipment such as, for example, alarm systems, safety equipment, office filing equipment and related products. During the past year Respondent purchased and caused to be transported to its New York facilities alarm supplies and other equipment valued in excess of $50,000 directly from locations outside of the State of New York. I find and conclude that Respondent Company is therefore an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It is also undisputed and I find and conclude that the Charging Party Union is a labor organization within the meaning of Section 2(5) of the Act. The alleged unfair labor practices discussed herein principally concern Respondent's New York facilities. It is undisputed and I find and conclude that Charles Palo is Respondent's Eastern area installation manager; that Anthony Falcone is Respondent's New York regional installation manager; and that both Palo and Falcone are agents and supervisors of Respondent within the meaning of the Act. John Worsham, the alleged discriminatee, was one of some six or seven installers employed at Respon- dent's New York office. II. THE AUDIT COMMENCING ON MARCH 19 AND THE EVENTS CULMINATING IN THE TERMINATION OF WORSHAM; MANAGEMENT'S CONVERSATIONS WITH EMPLOYEES WON AND NAGLIARI FRANK H. ITKIN, Administrative Law Judge: This case was tried before me at New York on October 2 and 3, 1973. An unfair labor practice charge was filed by the Union on June I 1 and a complaint issued on August 28, 1973. The principal issue presented is whether Respondent Company violated Section 8(a)(I) and (3) of the National Worsham, as he testified, was hired by the Company in October 1968. Prior to his discharge on June 4, 1973, Worsham was a senior installer of the Company's equipment. During March 1973, Worsham's work perform- ance was favorably evaluated by New York Regional Manager Falcone and, as a result , Worsham received an 210 NLRB No. 138 DIEBOLD, INC. 817 increase in his weekly salary. Falcone acknowledged that Worsham was considered "an excellent worker." Likewise, Eastern Area Manager Palo-Falcone's immediate super- ior-acknowledged that Worsham was regarded as "prog- ressing very well" and was, at one time, being considered for a management position. Worsham and the other installers were permitted by the Company to use their own motor vehicles at work.' Commencing about January 1973, installers were given a flat allowance for the use of their automobiles and were also reimbursed for the cost of gasoline, oil, parking, and tolls.2 Installers were instructed by management to submit with their weekly time and expense reports the various receipts and bills supporting their claimed automobile charges. As Falcone credibly testified, he periodically reviewed with the personnel their weekly travel and expense reports, the types of vouchers which the Company wanted and related policies and procedures.3 David Allton, an auditor for Respondent working out of the Company's Canton office, testified that on March 19, 1973, he and another auditor arrived at the New York office to conduct a financial and operational audit. During the ensuing 2 weeks, Allton reviewed, inter aha, employee expense accounts and vouchers. Allton credibly testified that as a result of their investigation, "we felt there was something wrong with some of the receipts that had been turned in" by various personnel. Consequently, on Friday March 30, the two auditors met with Palo and Falcone and, as Allton explained: . . . we pointed out that we felt there was something wrong with the expense books and suggested that they [Palo and Falcone] take a little more care in reviewing [the vouchers] before they sent them to Canton. Allton recalled that several employee vouchers were discussed at this March 30 meeting with Palo and Falcone. Allton further explained: It was our feeling that there were several [employee vouchers involved]. . . we felt there [were] more and suggested that they [Palo and Falcone] take a little more care in what they process through the check registers. . . . We [the auditors] told them [Palo and Falcone] that we wanted them to look into this and advise us at a later date what [was] found and at the same time we would be reviewing further detail in Canton.4 that I should begin to check the vouchers against the T & E (travel and expense) reports more closely." 5 The auditors then returned to Canton. During the next week, employee Worsham submitted his weekly travel and expense report and accompanying receipts and vouchers. Falcone credibly testified that on April 4 he questioned Worsham about the employee's vouchers. Falcone explained: I received [Worsham's] T & E reports. . . . I noticed ... four identical [gasoline] receipts from the same station, a handwritten type of receipt, and also some parking receipts that also bear the same type of handwriting. [See R. Exhs. 41 and 42.] . . . I said to John [Worsham] that this type of receipt is not acceptable as a receipt. I suggested very strongly that he try to obtain a credit card type receipt which is commonly turned in by those . . . people submitting their T & E reports. I also told him that on the parking receipts there should be no problem in getting a validated date stamped parking receipt. . . . John said to me, this particular gas station I deal with, that's the only type of receipt they give. I said, . . . they must have a credit card machine because most gas stations will accept credit cards. Attempt to get that receipt. ... [Worsham] said he would attempt to get the receipts requested of him. . . . Falcone warned Worsham on this occasion that "if this type of receipt would be submitted again, [Falcone] would then remove it from [Worsham's] T & E report and [Falcone] would not reimburse [Worsham] for the ex- pense." Falcone recalled that he also spoke to employee Fred Winkler and other installers about their vouchers as a consequence of his March 30 discussion with the auditors. On April 17, as Falcone credibly testified, he again spoke to Worsham about the employee's vouchers. Worsham had submitted two handwritten gasoline receipts on plain paper dated April 9 and 12 in the amounts of $9 and $8, respectively. (See Resp. Exh, 43). As Falcone testified: I called Mr. Worsham in and I told him that this dust could not be. I asked him for an explanation of why this type of receipt, which really is not even a receipt ... it's nothing more than a piece of paper. [Wors- ham] said he spent this much money for gasoline. He did say to me he lost the receipts and that . . . is the reason why he submitted this. So, I told him that I would take his word for this and I would approve it. . . . And, as Falcone testified, the auditors "made me aware i Installers who did not want to use their own vehicles were provided with company cars 2 Prior to January 1973, installers were allowed 10 cents per mile for the use of their vehicles and were reimbursed for parking and toll charges 3 Falcone recalled that about February 1973, it had been brought to Falcone's attention that employee Worsham was using a small foreign automobile for work instead of the Buick station wagon which Worsham previously had declared that he would use Falcone instructed Worsham to use the Buick because the Company regarded the smaller vehicle as inadequate Falcone advised Worsham that he would disallow the employee's expenses for the compact car and "put [Worsham] in a Company car immediately" Worsham complied and thereafter used his Falcone, however, again warned Worsham: "This was the Buick 4 The auditors showed Palo and Falcone weekly travel and expense reports for employees Worsham, Joe Won, Fred Winkler and Bernard Bruning They also discussed a voucher of Falcone which was not considered to be in proper form 5 Falcone explained there was a consistency of gas and parking receipts that bear the same handwriting that could look very suspicious and it was my duty to investigate and see just what the problem is and why these receipts were being submitted 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD second incident in a very short period of time and if .. . this continued with these vouchers . . . [Worsham] would be subject to severe disciplinary action."6 Company auditor Allton credibly testified that about late April he was instructed by his superior in the Canton office to make a further and detailed review of Worsham's expense reports. Shortly thereafter, Allton was similarly instructed to review the vouchers and receipts which had been submitted by four other installers working in the New York office. Allton reviewed all expense receipts and related data which had been submitted by Worsham to the Company. Allton completed his work on the audit of Worsham about mid or late May. The total audit included Worsham's vouchers and receipts for a 1-year period commencing from about April 1972 to April 1973. (See Resp. Exh. 40.) About May 21, as Palo credibly testified, Robert Yopko, the Company's general manager in Canton, telephoned Palo and related to Palo, ... that [Palo] was having a problem as far as John Worsham was concerned with the T & E and expense reports that were coming through. [Yopko] told [Palo] that . . . an audit was being prepared and he [Yopko] would inform [Palo] of the findings as far as John [Worsham] was concerned... . About May 22, Palo called employee Worsham into the New York office. Palo, as he credibily testified, informed Worsham that, Canton had uncovered some problems with his [Worsham's] T & E reports, that it could be a substantial amount, and for him more or less to start putting in legitimate tickets so this could be .. . discontinued . . . and we could have a fresh start... . Thereafter, on Thursday May 31, Falcone reviewed Worsham's travel and expense report for the week ending May 27. (See R. Exh. 1). Falcone, as he credibly testified, determined that Worsham was improperly claiming four hours in overtime. Falcone explained: Mr. Worsham submitted his T & E report and I questioned four hours of overtime, two hours submitted on two different days. This I detected by checking T & 6 Worsham testified that about March 1973, Falcone apprised Worsham that the Company "is feeding all of the information derived from the local branches into a computer, so it would be necessary to be more careful in making out the T & E reports " Worsham testified that subsequently, during April, Falcone told Worsham and his co-workers "You fellows are pulling some boners . Some people are turning in consecutive receipts" Worsham testified that he told Falcone that he cannot get gasoline stations to give him the type of receipts which the Company wanted. Worsham acknowledged that Falcone had instructed Worsham that he was "going to have to get a particular type of receipt for gasoline " Worsham was shown four gasoline receipts which appear to be dated March 26, 27, 28 and 30 (see Resp. Exhs 41 and 7) Worsham acknowledged that he may have filled out one or more of these receipts Worsham was shown gasoline receipts which appear to be dated April 9 and 12 (see Resp. Exhs 43 and 4) Worsham acknowledged that Falcone told Worsham that these were not the type of receipts which the Company wanted. Worsham denied being threatened by management with discipli- nary action for his failure to provide proper vouchers or receipts Elsewhere in his testimony, Worsham acknowledged that he came into possession of a "stack of receipts" which were in blank, that he would fill in dates and figures on these receipts, and that he would submit these receipts to the E reports of other men that he had worked with on the same job. I called Mr. Worsham to get an explanation of why he had overtime and the other men working on the job did not have the overtime. . . . [Worsham] told me [Falcone] ... he was entitled to it . . . [he] only took a half hour lunch. . . . He says, I feel very strongly about it and I do not feel I would give up this overtime without a fight... . Falcone apprised Worsham that the claimed overtime was being disallowed. Falcone, as he further testified, also discovered that four parking vouchers were submitted by Worsham for 1 day (May 24) during the prior week although Worsham had only worked on two jobs on that particular day (see Resp. Exhs. 1 and 2). In addition, parking receipts had been filled out in longhand. Two parking receipts were apparently taken from a Katz Parking System receipt book. Worsham admittedly had used this type of book to write out his receipts, as noted supra. Falcone, upon discovering questionable items in Wors- ham's travel and expense report and related receipts, telephoned General Manager Yopko in Canton.? Falcone discussed the entire situation with Yopko. Yopko advised Falcone that a detailed report was in the process of being prepared on Worsham and that Falcone should consult with Palo when Palo returned from vacation that Monday, June 4. Yopko told Falcone to have Palo telephone Yopko on Monday. Falcone, however, was scheduled to start his vacation on Monday. Consequently, Falcone telephoned Palo at his home on Saturday, June 2, and related what had transpired. On Monday June 4, as Palo credibly testified, Palo telephoned Yopko in Canton. Yopko explained to Palo that "the summary was being prepared by the audit department [concerning Worsham], that he [Yopko] had some preliminary knowledge of how much was involved and that at this point there was nothing else we could do for John [Worsham] but to let him go." Palo called Worsham into the office that day. Falcone , as stated, was on vacation. Palo explained to Worsham that "an audit had been prepared and based on that audit I [Palo] had to fire him for misappropriation of Company resources."8 Joe Won, an installer working for the Company, testified Company for parking and gasoline expenses . Worsham claimed . " It was dust my way of making out receipts and accounting for expenditures." Worsham, as discussed hereinafter, continued to write his own receipts for parking and gasoline expenses after having been spoken to by Falcone during April. Worsham claimed that the receipts which he wrote out "were for actual expenses incurred and not bogus" and that Falcone-although apprising the employee that the Company wanted "actual receipts"-did not regard this conduct to be of a serious nature Worsham asserted that his "refusal to get gas receipts from garages" and writing his own receipts were "standard practice" in the New York office and "they were being told to do it" Worsham's testimony in part substantiates the testimony of Palo, Falcone and Allton . Insofar as Worsham's testimony conflicts with the testimony of Palo, Falcone, and Allton as stated above, I am persuaded on this record that the testimony of Palo, Falcone , and Allton as summarized above is more complete, trustworthy and credible T Palo was on vacation that week. 8 Worsham testified , inter aha, that he had participated in an unsuccess- ful attempt by another local union to organize Respondent 's New York employees during 1971 ; that he spoke on the telephone to a shop steward from the Charging Party Union during March or April 1973; that he first DIEBOLD, INC. that "serious discussions " about the Union first started about April 1973 in the New York office ; that Worsham notified Won that there would be a Union meeting on May 5, which meeting was later changed to May 23 ; and that Worsham "was the one who actually initiated the organiz- ing of the Union itself. He took the first step ...." Won recalled that some 10 to 12 persons were present at the first Union meeting held on May 23. Won further testified that about a week or ten days after Worsham's discharge in June , Palo called Won into his office . Won explained: I [Won] was leaving the shop and when you leave the shop you have to pass his [Palo's ] office and 90 percent of the time his door is open and he usually calls [persons ] in and says hello. He [Palo ] called me and says what's the story? I said what do you mean? He said , you know what I mean about the Union . I said, I don't know anything . We discussed different topics. He wasn ' t plugging anything specific , but we just discussed different topics about what the Union could do for me as far as the backing that I had , that I didn't have any backing as far as the Company. . . . That there wasn't enough support as far as the rest of the guys go... . Won recalled that Palo said that Won "should get support" and employee backing before going any further with the Union . Won further testified that Palo, discussed . . . the benefits I have with a Company car and I didn't have to worry about layoffs, if I went with the Union I could be laid off... . During this discussion , Won said to Palo that he "thought it was a mistake to fire" Worsham because Worsham "was the only one actually doing the work in New York from start to finish"; management "had to bring people from out of the State to do" Worsham's work and those people "didn ' t accomplish very much ." Won could not remember Palo's response to this latter statement. Won testified that about one week later , Palo called Won into the office . Falcone was also present . Palo told Won that Won "was screwing up on" his receipts and vouchers and that " it wasn ' t petty larceny , it was grand larceny and that (he] could be arrested." Palo asked Won, "how many book receipts" does Won have; "don't they ever end"; and met with the Charging Party Union's shop steward on April 26, 1973, that he thereafter repeatedly spoke to his coworkers about the Union dunng April and May; and that he attempted to schedule the first Union meeting for May 5 but, instead, the first meeting was held on May 23 and attended by some ten Company employees Union Shop Steward John Crowley generally corroborated this testimony Crowley placed his first telephone contact with Worsham about April 9 and his first meeting with Worsham about April 26 Worsham claimed that during the morning of May 21, Falcone interrogated Worsham about the Union in the New York office. Worsham claimed that Hines Grosser, a Company supervisor, warned Worsham that Worsham was being watched. Worsham claimed that later that same day, May 21, he was called back into the office and this time questioned about the Union by Palo During this conversation, Worsham claimed that he was, inter aim, threatened with discharge if Palo discovered that Worsham was "in front of this Union movement " Palo and Falcone deny these assertions Upon the entire record, I am persuaded that the testimony of Palo and Falcone as stated above, insofar as it conflicts with the testimony of Worsham, is more accurate, reliable and trustworthy In particular, I do not credit Worsham's assertions as to what Palo and Falcone said on May 21 i note that by this time Worsham's expense procedures had been criticized by management and were under close scrutiny. 819 how many such receipts has Won submitted to the Company . Falcone then instructed Won to correct his vouchers for the prior week . Won removed all of his parking for that week and his time and expense report was then approved . This was the first such conversation with Palo concerning specific voucher and travel expenses which had been submitted by Won . Won admitted that in the past he wrote out his own receipts allegedly to cover actual disbursements . Won would fill in an amount on blank receipts which he had in his possession . On cross- examination , Won acknowledged that he had admitted to both Falcone and Palo at this meeting during June that he had been turning in improper vouchers which were, as the witness agreed , "padded ." Won testified that since this meeting with Palo and Falcone , he has been turning in correct and proper vouchers.9 John Naglian testified that he worked for the Company for about 3 weeks dunng August 1973 . Nagliart was terminated on August 31. Nagliari recalled that his supervisor , John Thomas , told him , inter alia, that "it is not a good idea to get involved with any union , and people have been getting to the union meetings ." Nagliari asserted that on August 31, when he was terminated , he told Thomas that he was going to Local 3, the Charging Party Union in this proceeding . Thomas then spoke with Falcone . Falcone then spoke with Nagliari . According to Nagliari , Falcone asked Nagliari to sign a piece of paper which assertedly would help Nagliari get a better job reference. During the ensuing discussion , Nagliari showed Falcone his Local 3 union card and informed Falcone that he got this union card from employee Winkler . Falcone questioned Nagliari about employee Union activities and made a copy of the employee's union card.io III. DISCUSSION The principal question raised here is whether Respon- dent Company-in discharging employee Worsham assert- edly because the employee was misappropriating company property-was really motivated at least in part by antiunion animus . For, under settled law, "The Board is not compelled to accept the employer's statement when there is reasonable cause for believing that the ground put 9 Falcone and Palo in large part substantiate Won's testimony concerning their meeting with respect to Won's vouchers As Palo testified: It was pointed out to [Won ] that the parking receipts did not appear to be legitimate , they were questionable receipts Upon further conversa- tion with Joe [ Won], Joe admitted that he was putting in questionable receipts and that he would stop and he did I credit the above testimony Palo, however , denied discussing the Union with Won during June, as stated above. Won, as noted , is still employed by the Company . I am persuaded that on the entire record Won 's testimony is more reliable and trustworthy in this respect Consequently , I find and conclude that Palo questioned Won about Union activities and made the statements attributed to him, as stated above 10 The above statements attributed to Thomas and Falcone are not alleged to be unfair labor practices This testimony was offered for background purposes Falcone generally denied interrogating Nagliari about the Union Falcone admitted , however, that Nagliari "literally put [his Union card I on my desk when he turned in his manual and prints and tools on the day of termination ." I am persuaded on this record that Nagliari s testimony as stated above is a truthful account of what was said to him by Thomas and Falcone. 820 DECISIONS OF NATIONAL LABOR REL A LIONS BOARD forward by the employer was not the true one, and that the real reason was the employer's dissatisfaction with the employee's union activity." Great Atlantic and Pacific Tea Co. v. N.L.R.B., 354 F.2d 707, 709 (C.A. 5, 1966). "And, a discharge motivated only in part by anti-union discrimina- tion is similarly illegal." J.P. Stevens & Co. v. N.LR.B., 380 F.2d 292, 300 (C.A. 2, 1967), cert. denied 389 U.S. 1005. The credited evidence stated above establishes that Respondent had ample reason to believe that employee Worsham was fabricating parking and gasoline receipts. Worsham asserted that parking and gasoline receipts which had been filled out and submitted by him were in fact for actual disbursements made. Thus, Worsham claims that although he fabricated receipts, the amounts recorded by him accurately reflect his actual disbursements. I am persuaded, however, that if Worsham had intended only to charge his employer for his actual disbursements, he would have made a greater effort to obtain legitimate receipts from the gasoline stations and parking lots involved. Worsham was informed during March 1973-that he would have to be more careful in making out his expense reports because the Company was using a computer for this type of data. Later, on April 4, Manager Falcone questioned Worsham about his receipts for the prior week. Worsham was warned by Falcone that he must submit a credit card type of gasoline receipt and a validated date stamped parking receipt. Later, on April 17, Worsham was threatened by Falcone with severe disciplinary action if he persisted in utilizing the type of receipts which he was submitting to the Company. And, on May 22, Eastern Area Manager Palo warned Worsham that the Company "had uncovered some problems with his T & E reports, that it could be a substantial amount, and for [Worsham] more or less to start putting in legitimate tickets, so this could be discontinued ... and we could have a fresh start. . . ." Nevertheless, Worsham continued to use his fabricated receipts and he was discharged on June 4. On this record, I find and conclude that the real reason for the employee's discharge was his fabrication of these receipts under circumstances which reasonably caused the Compa- ny to determine that Worsham was falsifying his vouchers. The detailed audit prepared by the Company (Resp. Exh. 40), as explained and supplemented by auditor Allton, substantiates this determination. Counsel for General Counsel argues that Worsham was discharged because of his union activities. Counsel cites, inter alia, testimony pertaining to the Company's antiunion animus, the timing of Worsham's discharge, the delay in preparing the Company's final audit for Worsham and the fact that audits for the other New York installers have not issued. These and related facts raise some suspicion about management's assigned reason for discharging Worsham. Nevertheless, on the record before me,ii I do not find sufficient credible evidence establishing that Respondent, in discharging Worsham, was motivated at least in part by Worsham's Union activities. As for Respondent's alleged acts of interference with, and restraint, and coercion of employee Section 7 rights, the credited evidence establishes and I find and conclude that about June 11, 1973, Eastern Area Manager Palo interrogated employee Won in the office about the Union. Won was called into Palo's office . He was asked, inter alia, "what's the story?" Won responded that he did not understand what Palo was talking about. Palo apprised the employee: "you know what I mean, about the Union." During this conversation , Palo discussed Won's existing benefits and stated that Won "didn't have to worry about layoffs, if [he] went with the Union [he] could be laid off...." At the same time, Won was told that he should not proceed any further with the Union without employee support . I find and conclude that , under the circumstances present here, Palo coercively interrogated Won about employee union activities and threatened the employee with layoff if the employee supported the Union, in violation of Section 8(axl) of the Act. Cf. N.LR.B. v. Gladding Keystone Corp., 435 F.2d 129,130,132-133 (C.A. 2, 1970). CONCLUSIONS OF LAW 1. Respondent Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Charging Party Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by interrogating employee Won about employee union activi- ties and threatening employee Won with a layoff if the employee supported the Union. 4. Respondent did not commit other unfair labor practices as alleged in the complaint filed in this proceed- ing. 5. The unfair labor practices found herein are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent Comp; any engaged in certain unfair labor practices, I will recommend that it cease and desist from engaging in these and related acts of misconduct. I further recommend that Respondent take certain affirmative action designed to effectuate the policies of the Act. ORDER12 Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, Respondent Diebold, Incorporated, its officers , agents, successors and assigns , shall: 1. Cease and desist from: (a) Interrogating employees about employee union activities. It I note , however, that employee Won, who admittedly was "padding " Rules and Regulations of the National Labor Relations Board , the findings, his receipts , ceased this practice upon being warned by Falcone and Palo, as conclusions , recommendations , and recommended Order herein shall, as stated above . Worsham continued this practice despite repeated warnings provided in Sec . 102.48 of the Rules and Regulations , be adopted by the by management . Board and become its findings , conclusions , and order, and all objections 52 In the event no exceptions are filed as provided by Sec 102 .46 of the thereto shall be deemed waived for all purposes. DIEBOLD, INC. 821 (b) Threatening employees with layoff if they support a union. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Local Union No. 3, International Brother- hood of Electrical Workers, AFL-CIO, or any other labor organization, or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its office and facilities in New York, New York, copies of the attached notice marked "Appendix." 13 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 2 in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint in this proceeding be dismissed insofar as it alleges violations of the Act not specifically found herein. 13 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportunity to present their evidence , the Board has found that Diebold, Incorporated violated the National Labor Relations Act and has ordered us to post this notice. We therefore notify you that: WE WILL NOT interrogate employees about employee union activities. WE WILL NOT threaten employees with layoff if they support a union. WE WILL NOT in any like or related manner interfere with, restrain , or coerce our employees in the exercise of the right to self-organization , to form labor organiza- tions , to join or assist Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization , or to refrain from any or all such activities. All of our employees are free to join , or to refrain from joining , Local Union No . 3, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organi- zation. Dated By DIEBOLD , INCORPORATED (Employer) (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board 's Office, 36th Floor Federal Building, 26 Federal Plaza, New York, N.Y. 10007, Telephone 212-264-0300.